Cheers Basil...let's see what my solicitor says about that!

Basil, could you check on the back of your envelope and tell me the address?

I found out that the envelopes with the DN had got mixed up (not sure if it was our mix up or the solicitors) and instead of having the Chester address on the back had a Northampton address. So my solicitors decided not to go to trial on that because the MBNA Witness Statement was claiming MBNA never send out DNs 2nd class! I think there is a higher court case coming up near Christmas which may show that MBNA do actually send out DNs 2nd class...

Hi LB and M and M Well I have more of the detail now after getting a reply from the solicitors. It seems the envelopes for the default notice got mixed up (not sure who was to blame, us or the solicitors), instead of the back giving a Chester address it had a Northampton address. What was funny though was that the MBNA Witness Statement was that they never send DNs second class (!!!), and when we had to disclose our evidence, we had a scan of the front of the envelope which clearly showed it had been posted 2nd class...they asked to see the back of the envelope as if they knew there would be an error, that was when the Northampton address came to light! Now how would they be looking for that? It seems strange that they were so sure of themselves, especially as I do know at some time I did have the right envelope and it had been sent second class. Anyway, the solicitors decided not to go to trial on this basis, as they felt the courts would accept a reconstituted agreement, and they agreed a consent order...and now MBNA have put a charging order on our property!

Hi M and M, thanks for the commiserations. The sols did it all...but reading up on LB's thread, I realise the same may have happened to her as to me...the judge may have accepted a reconstituted copy...who knows. No, the sols did not give us a copy of my defence...so I should ask them that too, thanks. I know the sols have asked us to act quickly to ensure we don't get a charging order on our house, to arrange payment...so I guess that is what you mean by redetermination??? So I need to do an income and expenditure?

LB I would just like to say, I also failed with MBNA, but I used a solicitor! It looks like MBNA are getting more aggressive and judges seem to be lining up on their side. I haven't got the details of how the judgement was reached, but now that I read your thread I realise that the same may have happened in my trial, even with a specialist solicitor representing me. I only hope we can pay off in small amounts as the amount we owe would cripple us.

LB145 I hope your no win no fee solicitor is better than mine...they lost the easiest case for me to MBNA - defective default notice and an application form parading as an agreement...

This is an update on MBNA and the solicitors...they lost the case for me! Even though it was pretty strong, I doubt very much if MBNA could have produced an original agreement in court, and the default notice was defective, so the most they could ever hope to get would be the arrears...however the solicitors have just sent a letter saying the case was lost and now we have to act to pay the entire sum to MBNA or make an arrangement with the court to pay a monthly amount based on our income. The solicitors won't even tell us how the judge's decision was reached, nor how the barrister argued, nor even who the barrister was! I have made a complaint to their Managing Partner...if I hear more I will post up here. But I can see how awful it is when a solicitor makes decisions and you are left out of the loop but have to pay the consequences.

Hi Rizel OMG - I just had a look at your agreement! it is exactly the same as my OH's INCLUDING THE DATING STYLE!! I noticed it because my OH does not write his dates like that, i.e. with a dot between the digits...and I noticed your agreement also has exactly the same dots!!! I know my OH would never sign something without dating it...so it looks like they've grafted his signature onto an agreement and the Jonathan person (who also signed on behalf of the lender on my OH's agreement too) dated it himself...otherwise no other explanation of how the dating on yours looks the same as the dating on my OH's. Any update on your situation? Red

Ok ihpj, I haven't seen your default notice, but I see you already know and have argued that the terms on the back of your application form do not match the front - condition 11, for example. Most probably your DN takes it's legitimacy from a para 8 (as mine does) of your agreement in regards to payment of arrears, but para 8 on your 'agreement' does not refer to arrears at all but something entirely different. In which case the DN does not relate to the 'agreement' and could therefore be seen as faulty. Most probably they have sent you current T&Cs which do match the DN but don't match the numbering of the terms on the 'agreement'. It would be hard for MBNA to prove that the current terms, the terms on the back and the DN were actually all related to the application form. So far I have searched but not seen a case on this forum with such an application form (and pasted terms to make it appear like an agreement) where MBNA has succeeded in producing the original. However, I can see you have already done your homework on this and if you have come to the conclusion that it is better for you to settle then I'm sure you know what you are doing. Best of luck.

Just PMd you with the details.

Great...so you have them by the short and curlies! Para 8 should be about paying arrears according to the DN, so the DN has no relation to your application form masquerading as an agreement. As for the typed T&Cs they can't be the ones at the time if they are numbered differently, the lenders would have to say how they related to your application form/agreement because they clearly don't.

Hi LB, also wrote on your thread. I handed my case over to a 'no win no fee' solicitor who has said that cases like this rarely go to trial...they are handling it all, I think primarily based on the faulty DN.

Hi LB, trying to read through your thread today. Can you check...on your DN it refers to para 8 of your agreement (as it did in my DN) - in my 'agreement' there was no para 8, only paras 1 to 3 (incomplete because it states at the top that these are only paras 1 to 3, but no full copy of the terms given with the CCA). The para 8 can be found on the current terms and conditions - but as you have already noted I think, those current t&cs do not match the application form which mentions section 11 for data protection, and section 11 on the current t&cs are not about data protection. So it shows the current t&cs do not match the application form and the DN has no legitimacy deriving from the signed application form. They would have to produce the full terms for the original agreement, and it is very unlikely that they can, it is not normal to change the numbering of the terms like that, so they would have to produce original terms that also show how the numbering changed. They would get themselves tied up in nots. I'm not sure, but it looks like this would invalidate the DN to say the least.

If your 'rep' is a Claims Management Company then they are probably trying to get out of refunding your money ... if you haven't paid them then get rid of them, they'll do you more harm than good. These CMCs lost out in a test case because it was shown that they could not take the lender to court to write off the debt - the CMCs wanted quick money. But if you are not paying the debt then the onus is on the lender to prove the terms of the debt by producing the agreement. You can't take them to court and expect to win. But they will find it impossible to enforce the debt (they can only harass you), unless they can produce the original agreement and it has to have all the prescribed terms correct. This is the wording from the actual judgement that you can ask your rep to refer to - about the need for lenders to provide a copy of the original agreement in response to a s.78 CCA request if the agreement has been varied: Citing HHJ Waksman QC in Carey v HSBC, 23 December 2009, when an agreement has been unilaterally varied “Reg. 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request”. Remember that most agreements have been varied - the lender has altered the interest rates, or altered the charges. If your account goes back before 2007 then there is every likelihood that the agreement will have been varied.

This was the basis of a recent test case, to rule that harassment was illegal, but unfortunately the consumer lost out on that issue, the judge ruled that this was ok. If you're interested do a search on this site for McGuffick, and you'll find out about how that test case worked out.

Certainly not true, they do need to have an enforceable agreement! There was a recent ruling which made it possible for lenders to send you a reconstituted agreement (not the original) in response to your CCA request, but it also confirmed if they have varied the agreement (most of them have varied it, interest rates, charges etc), then they have to send you a copy of the original.

Wow ihpj - just read your thread, you started off very challenging and now have decided to settle! Was there something that happened in between that made you change your mind? Is it that you desperately want a clean credit record? Did you get a default notice and termination of the account? Have you checked it is not faulty? Your app form is similar in many ways to mine and I now have a no win no fee solicitor who thinks it's unlikely the case can go to trial (Restons issued a claim in court) because of the faulty default notice and enough evidence that the app form is not an enforceable agreement. Restons must be very happy indeed if you are offering to settle!

Firstly, I don't think you'll get much joy from the Ombudsman...they don't consider what the law says, they even admit that themselves, and many people here have found they even side with the banks. Secondly, you only needed to wait 12+ 2, not 12+2+30 - before it was the case that after 30 days they would have committed an offence, but that provision has been repealed. Thirdly, the recent court cases they may be referring to are the Waksman and Carey judgements. Even though they are legally obliged to send you your agreement and they are in breach and can't enforce the debt if they don't, they can still harass you for payment as this harassment was not regarded by the judge as 'enforcing' the debt and therefore it was considered okay. He also stated that they can also put a negative record on your credit file. You will have to be okay with both the harassment and your credit rating being affected if you want to challenge them. It sounds like you have application forms and this is usual with MBNA, they often don't have agreements and try and tart up an application form to look like an agreement. Check if there are any prescribed terms included, even if there are, check that this isn't an application form with terms cut and pasted onto the side or back to try and make it enforceable. This kind of photoshop job is very common with MBNA. Best to scan it blank out the personal details and post it up for people to comment. Basically lenders will try anything to scare you and get you to pay up. You can't reason with them. Just do the homework to ascertain whether what they've sent you is enforceable, and if it isn't, then just sit tight and wait it out. BTW I have an MBNA application form which they've stuck terms onto, but a deeper investigation shows clearly that those terms don't match the current terms they have sent, and the application form itself doesn't match the current terms either. They eventually shot themselves in the foot by sending out a default notice and terminating the account - the contents of the default notice gave even more ammo to this argument and was in itself faulty...so they're stuffed.

Agreed GH, no Total Amount of Credit, clearly unenforceable...there's no way it's clear to an ordinary consumer how much they owe in full. Nothing about variation, but have they in fact varied it? If they haven't then it's not an issue, if they have then it is an issue.

Agreed. This is how I see it: The case at hand is what is stated by me in my account in dispute letter, that is why I have stopped payments - I have defined the nature of the dispute in that letter. After that letter my position is that I only respond to letters which try to deal with the points raised in that letter, i.e. that address the dispute. Most of my creditors simply ignore these points were ever made, they try to state an entirely different case - instead of the case of their s.78 default causing me to stop payments, they try to put forward a case that me stopping payments caused a default. By ignoring the root cause of the dispute they are simply trying to bully payments out of me with threats. So I file these, and don't bother replying to them as they are irrelevant to the original case at hand, which is the dispute I defined in my letter to them. They only address the symptoms and not the cause. As long as they do not reply directly to that account in dispute letter I have no need or reason to reply to the assortment of red herrings they throw into the mix. To do so would be to engage on their terms, dealing with the symptoms, rather than forcing them to engage on my terms, which is to deal with the root cause of the dispute. This not only saves energy but also keeps the arguments clean, clear, to the point and on my terms. In the process I give them as much rope as they need to hang themselves - the Default Notice usually does it. In court, or in the pre-action protocols, they will have to deal with the root cause, which is the failure to provide an enforceable agreement and all the mistakes they made on the way, like the Default Notice. Of course this is assuming the account in dispute letter was clearly and powerfully argued, and will be the basis of your defence in court (plus all the bonus points you pick up on the way, like a defective DN etc).

Thanks Pipster Yes, I can see that it is important to not only have the right documentation (and analysis of that documentation), but also it is important the way it is presented in court...I can see that it may be very easy for the other side to throw in some reference to case law or legal procedure and I wouldn't know what they were talking about - then I would start feeling lost and out of my depth. I think it is a state of mind, some people naturally would have the confidence to deal with that, and not feel undermined or attacked by the other side's tactics...especially as you say, if they had done enough preparation before hand...I'm not sure that I would in the moment. Also I can see that some judges can be okay with LiPs, others can be dismissive of us, and it is just pot luck whether we get a decent one. And it seems many judges don't have a good grasp of the CCA, so they may tend to defer to the other side's barrister because of their specialist knowledge. So these are all considerations we need to address. I had wanted to get a public access barrister who would act on a 'no win no fee' basis, precisely because I was concerned about issues of presentation and more extensive specialist knowledge. I thought I knew my case well enough to direct them. But it didn't seem easy to find such a barrister, so luckily I have now found a solicitor thanks to someone on CAG. That solicitor, based on seeing a scan of my DN, has now said they will take up my case on a 'no win, no fee' basis. So I'm feeling a bit relieved. Of course, I'm still very concerned that it goes right, having taken it all this far. I think this solicitor sounds quite good, as the first thing I was asked for was the Claim Form, the DN and statements (funnily enough not the agreement) - so it seems as if they know their stuff, I don't know the barrister they will be using, so I have to find that out. Good luck in your appeal Pipster, I hope it works out. I'll have a read of your threads.

DD, they do say they "WILL" terminate on the DN...so that's good news! Thanks that's good to know!

Thanks M, very nice to have the reassurance about the DN dates...and really appreciate you telling me how long the process takes...that was something I really had no clue of...was getting ready to appear in court within a couple of weeks:shock: A bit of a relief that it takes that long.

Hi M Thank you so much for looking in. I really do appreciate your help. I am sending an SAR off today. The value is over 15,000 - with all their charges etc I think it's almost coming to £17,000 or so. So it's not a small claims. Would you be able to count the days on my DN to tell me if I'm right in thinking it's 2 days too short? It is dated 8 Feb (Monday) and was sent 2nd class (so would have received on Friday 12 Feb), the date to remedy breach is BEFORE 25 Feb (a Thurs). Would really appreciate a second mind on this, just to make sure I haven't made a mistake. I am a little worried about being an LiP so any tips on preparation and how to handle myself in court would be really welcome. Thanks! Best Red